> 863 S.W.2d 148
Court of Appeals of Texas,
Dave RICKEY, Appellant,
HOUSTON HEALTH CLUB, INC., d/b/a President & First Lady
Health & Racquetball Club, Appellee.
Aug. 31, 1993.
Rehearing Denied Sept. 21, 1993.
Member of health club who allegedly injured his knee while running on club's indoor jogging track brought
action against club, alleging both common-law negligence and Deceptive Trade Practices Act (DTPA) claims.
Judicial District Court, Harris County, William R. Powell, J., entered judgment in favor of club, and member appealed.
The Court of Appeals, Grant, J., held that:
(1) under express negligence doctrine, release provision in health club
membership contract did not protect club from liability for member's negligence claim, and (2) provision of health club
membership contract stating that member was aware that use of club equipment and facilities could cause injury did not
impliedly negate any representations made by club regarding suitability or condition of jogging track, for purposes of
member's DTPA claim.
Reversed and remanded.
Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.
Dave Rickey appeals from a summary judgment rendered against him in his suit against Houston Health Club,
Inc., d/b/a President & First Lady Health & Racquetball Club (the Health Club).
Rickey alleged causes of action under
both common law negligence theory and the Texas Deceptive Trade Practices Act for personal injuries sustained when he
fell on the Health Club's astroturf jogging track.
The trial court granted summary judgment in favor of the Health Club
on all claims.
Rickey contends that the trial court erred in granting summary judgment because he has both a viable
negligence action and a viable DTPA claim against the Health Club.
On November 6, 1988, Rickey entered into a retail installment contract with the Health Club that allowed him to
use the Health Club's facilities in exchange for an initiation fee of $616 and a monthly fee of $5.30.
Rickey alleges that
on March 4, 1990, he injured his knee when he tripped and fell on the Health Club's indoor jogging track.
The track was
covered in astroturf, which Rickey claims is an inappropriate surface for a track because of its tendency to catch and grab
a runner's shoe.
Rickey filed suit alleging both negligence and a violation of the DTPA on the part of the Health Club.
Health Club moved for summary judgment claiming the affirmative defense of release and also claiming that the DTPA
had no application in premises liability cases.
The trial judge granted summary judgment favoring the Health Club.
Summary judgment is proper provided the movant establishes that there is no genuine issue of material fact and